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Failing Law Schools

The usual practice of The Journal of Legal Medicine is to not go out of our way to review a book we do not think would be of interest to our readers. There are more good books published than any of us can read and we see no benefit of wasting our readers’ time with those we cannot endorse. However, Failing Law Schools, by Brian Tamanaha, the William Gardiner Hammond Professor of Law at Washington University School of Law, is not just a book. It is a book which represents what has become a movement to blame the legal education system for the loss of legal jobs due to the crash of the United States. It also is a book which has become closely associated with an on-going series of articles in the popular press, most notably the New York Times, alleging that legal academics have acted in bad faith to preserve a broken system which rewards us at the expense of our students. It also is a book which cannot be ignored.

Law professors, lawyers and journalists across the country have reviewed the book and fall into two camps: those who find Tamanaha’s expose “courageous,” and those who vigorously object to his claims of intentional fraud. Moreover, reaction to the book has created what can only be described as a classic double bind. Those law professors who reject his premises have been called blinded by self-interest and therefore unreliable critics. One law professor reviewing the book describes Tamanaha as “a prosecutor arraying the evidence to prove intent [who] offers up a very compelling narrative that the dispassionate observer is likely to find convincing,” and warns that those professors who do not essentially confess their complicity will “by history at least” end up “look[ing] foolish.” Maybe so. But as a relative late-comer to legal academe who first spent 10 years practicing law in both the public and private sector, I think it is important to disentangle the criticism that legal academe does not adequately prepare students to practice law, from the accusation that this failure bears any relationship whatsoever to our graduates’ ability to find legal employment that pays enough to cover their educational debts. Because one thing has nothing to do with the other.

In reading and reviewing Failing Law Schools, I do not seek to criticize Professor Tamanaha’s skill as a writer or researcher, nor to suggest that he has no basis for the conclusions he has drawn here. But in the face of what no one can deny is a very different market for legal employment, I do want to challenge his conclusion that the solution going forward is to dismantle legal education in its current form and replace it with a form of structured apprenticeship, in which students are taught what they need to know by part-time instructors who, as practicing attorneys, can better prepare them for the career that lies ahead of them.